








'>' 












'.'^djf^*' ^y* "^^ "•.'^« 



-^o^ 

^ ^ "* 



> 



%^^^ ;^^\ \,^/ .'^fe- %^^^ -*^fe''' \c,'i>'^ .'^ 




^^^^^\ \^ 
















.^'\ 




V';^ 

















v.^ /^ 


















^^'%.. -.«i^.' j^""^ 



V 









%.. 



,.^^ "O^^^.%0^ V"^\^^' V^-%°' " 









••' ,o' 




.*' ..'■•. •"* 







/Z//Y 



BUSHROD WASHINGTON. 



Damna taraen celeres rcparant caelestia lunae : 

Nos,, ubi decidimus, 
Quo pater Aeneas, quo dives Tullus ot Aliens, 

Pulvis et umbra sumus. 



PHTL , DELPHI A: 

riMyT''-;/ u^: c. shermajs" k ^o:> 

1858. 



BUSHROD WASHINGTON. 



Damna tamen ccleres reparant caelestia lunae 

Nos, ubi decidimus, 
Quo pater Aeneas, quo dives Tullus et Ancus, 

Pulvis et umbra suraus. 



PHILADELPHIA: 

PRIKTED BY C. SHERMA^T t SOK 

1858. 






1 ()«4:^ 



1898 



MEMORANDUM. 



Upon the death of Judge Washington, the late Hon. Joseph 
Hopkinson, the District Judge at that time, delivered an Eulogium 
upon him, at the request of a Committee of the Bar of Philadelphia. 
The Discourse was very just and expressive in its praise, and quite 
pointed in noticing Judge Washington's calmness and fearlessness 
at a time of high excitement. He illustrated these qualities by a 
particular statement of The United States v. Bright, in April, 1809, 
a case in which Brigadier-General Bright was indicted, convicted, 
sentenced, and sent to prison, for obstructing, with an armed military 
force, by the express orders of the Governor of this Commonwealth, 
expressly authorized by a public law of the State, the final process of 
the District Court of the United States, issued in obedience to a 
mandate from the Supreme Court at Washington. The military 
body had been evaded by the ^larshal, who executed his process, and 
the Governor then succumbed, and paid the amount of the execution. 
The supreme authority being thus enforced, a pardon by the Presi- 
dent was presented to the Brigadier-General at the prison door. The 
eulogist, in strong but general terras, also spoke of Judge Washing- 
ton's "unrivalled ti\lents upon the Bench;" but, probably to abridge 
the discourse, or to give place for a full detail and application of the 
prosecution above mentioned, he omitted to analyze or to distinguish 
some other peculiar and clearly-defined characteristics of his subject, 
which the writer thinks of suffieient interest to present in the present 
form. No one, perhaps, was better acquainted with these character- 
istics, than Judge Hopkinson, or could have described them better, 
if it had coincided with the plan of his Eulogium. 

H. B. 



BUSHEOD WASHINGTON. 



My acquaintance with Judge Washington began in 
January, 1799, when he "first attended the Supreme 
Court of the United States as an Associate Justice. 
Tlie Supreme Court then held its annual Session in 
the City of Philadelphia, the seat of the Federal 
Government. Judge Washington's commission by 
President Adams was dated the 20th December, 1798. 
He was at that time thirty-six years old, his birth in 
Virginia having taken place in or about the year 
1762. He died in Philadelphia, on the 26th Novem- 
ber, 1829. 

As I knew him well, and bore to him as true honor 
and reverence as to any Judge I have ever known, I 
wish to discharge a part of my debt to him, by re- 
cording my love for his virtues, and my admiration of 
his remarkable judicial quahtics. So infirm is the 
hold that even an eminent Judge takes of the heart 
or memory of the country, or of the Bar of his own 
Court, that, before the lapse of thirty years, his vene- 
rable shade has been effaced by new hghts, in per- 



haps shorter time to grow dim and to he cifaced by 
others, and so on continually, a succession of crescent 
and wane, like the moon, but without repair and 
renewal. " So, and more also," it happens to the pro- 
fessors of the law. Tlie ablest Judge, and the best 
lawyer in Pennsylvania that I have known, have 
passed fi-om splendor to almost complete obscuration, 
in less than half the term of a single life. Nothing 
remains of them but what is absorbed into the body 
of the law from law reports, and merged in the un- 
distinguishing mass, or is reposited in the hearts of a 
very few survivors, who are soon to go to them, and 
to be forgotten with them. How much, then, does it 
concern them all, great and little, to think less of fame 
and name, and more of the " works that do follow 
them." 

As I came in one day to dinner at my lodging- 
house, in North Third Street, I perceived sitting in 
the parlor a new comer, of about the common height, 
of slight figure, sallow complexion, and straight brown 
hair, the features of his face generally small, one of 
his eyes apparently sightless, and the other having 
more than the fire of an ordinary pair. His chin was 
nearly or quite beardless, and it was to this, rather than 
to his other traits, that he owed the expression there 
was about him, of being an old young man, or a young 
old man — it was difficult at first to tell which — an 
expression that to some degree continued till his 



death. Tliis was Bushrod Washington, a nephew, 
and to some extent the elhe of General Washington,* 
and the son of John Augnstine Washington, General 
Washington's younger brother. Judge Washington 
had just arrived and taken lodgings at the same 
house. I soon found that he was easy in his manners, 
and affable, unaffected, unpretending, and as far as 
possible from stateliness. I coidd hardly believe that 
he was a Judge of the highest Court in the land. 

Though I Avas many years younger than he was, 
and but a law-student at the time, he permitted me 
to become acquainted with him, and very soon to be 
without restraint in my intercourse with him. Upon 
the common topics of conversation I found that I 
knew about as much as he did ; and it was this, even 
more than his kind manners, that made me feel at 
ease with him. When I knew him better, and was 
in after years more competent to understand him, I 
came to know that he contained two different persons 

* One of the wisest and discreetest letters ever written by father 
to son, or by guardian to ward, was addressed by General Washington 
to this nephew, from Head-Quarters at Newburgh, on the 15th Jan- 
uary, 1783. In the midst of war, and of preparations for another 
campaign, notwithstanding the negotiations for peace, this admirable 
man gave his thoughts and affections to the young law-student in 
Philadelphia; and imparted to him, at considerable length, advice 
and admonition, appropriate to that condition, and worthy to be re- 
corded in letters of gold. — Sparks' s Writings of Washington, vol. 8, 
p. 372. 



ill the same man, not as he was more or less excited 
at different times, for I never knew him to be excited 
at all, but as he was mo\'ing in his different relations, 
private and public ; or, rather, according to the nature 
of his intercourse at the time, personal or official. 

In private life, and in general society, he was kind 
and good-humored, but not above the common level 
of educated men. He was unreserved, and inclined 
to free conversation ; yet his conversation made little 
impression on the mind, but that he was of sound 
judgment, true and sincere, and altogether unstained 
by any of those impurities of thought or language, 
which, in his day, at least in this State, were a veiy 
common fruit of Bar associations at the country courts. 
I have seen grievous stains of this nature in some of 
the Bench, and of the eminent members of the Bar, 
who rode the Circuits before and shortly after the 
adoption of the Constitution. In his exemption from 
these, he certainly was more than an ordinary man at 
that time of day. I do not mean to say that his con- 
versation was inferior or commonplace; but it had 
little to distinguish it, or to give it a specific character. 
His reading, except in the law, and in novels, of 
which he became a most voluminous viva voce reader, 
for the amusement of his valetudinary wife, did not 
appear to be extensive. His taste, particidarly in 
music, of which he was passionately fond, and thought 
himself a judge, was rather unrefined. His opinions. 



whenever he expressed them upon political topics, or 
the occurrences of the day, or on points of social dis- 
cussion generally, were of course sound, but in no way 
striking, either by their acuteness, or novelty, or the 
language in which he uttered them. His abstinence 
from invidious allusion to other persons, and his reni- 
tency against it on all occasions, became at length very 
observable ; and so also the abstemious part he took in 
conversation about the life and opinions of his great 
kinsman. There was great purity and dehcacy in all 
that he said and did, and perfect measure in his ex- 
pressions and actions; but it was the measure and gene- 
ral fitness that you observed, and not the grace or the 
strength, or the appositeness and point of what came 
from him. Had he never been seen but in mixed pri- 
vate society, you would have said of him, that he was 
a man of pure and kind affections, of cheerful and unas- 
suming manners, fond of the society of ladies, though 
not a very critical judge of the sex, as well pleased by 
a man of little instruction as by one of much, seeking 
what would make the hours flow smoothly, rather than 
what would give them a keen relish, and with a more 
decided inclination to the disengaged talk of a club 
supper-table, and the circulation of a temperate glass, 
than to anything else upon the round earth. I speak 
of the first fifteen or twenty years after his judicial ap- 
pointment. Nothing in this part of his life would have 
reminded you, when he was not upon duty, of either 

2 



10 

his judicial name, or, except by name, of his renowned 
uncle. You would have seen tliat lie was a sincere, 
true, and natural man, and would have set him down, 
under these qualifications, as a man of the usual intel- 
lectual qualities. In later years, in consequence of 
his devotion to Mrs. Washington, tlien a valetudina- 
rian, both in mind and body, he very much diminished 
the opportunity of his friends to see him in mixed 
society. But a few of them saw, and with increased 
regard and veneration for him, how promptly he sur- 
rendered his social refreshment to the call of his 
domestic allegiance, while he never gave up to this 
claim even a vibration of the pendulum that belonged 
to the hour of public duty. He explained himself 
to me once on this point ; and he has more than once 
intimated to me by his eye, that without taking half 
of a dissyllable from what belonged to the public, he 
would not give to the other half what belonged to his 
domestic duty. I will give this explanation hereafter. 

Such was Judge Washington to external appear- 
ance in private society and intercourse ; and I beheve 
that the appearance represented his character when 
his robes were not on him. 

But when his robes were upon him, that is to say, 
when he was seated upon his leathern cushion behind 
the desk of the Court, he was altogether a different 
person. He had no thought of following Lord Bacon's 
ad\"ice, and probably he had never heard of it ; but if 



11 

he had thought of nothing else, he could not have 
followed it better : " Be not too sensible or too remem- 
bering of thy place in conversation, and private answer 
to suitors ; but let it be rather said, when he sits in 
place, he is another man." His carriage " in place " 
perfectly became his station, not by assuming height, 
or erectness, or breadth, or sternness, but as if every- 
thing was removed from his consciousness but the 
duty before him, and he was to perform that under 
the eye and inspection of Justice herself. Without 
the least apparent effort, he made everybody see at 
first sight, that he was equal to all the duties of the 
place, ceremonial as well as intellectual. His mind 
was full, his elocution free, clear, and accurate, his 
command of all about him indisputable. His learning 
and acuteness were not only equal to the profoundest 
argument, but often carried the Counsel to depths 
which they had not peneti'ated ; and he was as cool, 
self-possessed, and efficient at a moment of high ex- 
citement at the Bar, or in the people, as if the nerves 
of fear had been taken out of his brain by the roots. 

Judge Washington was an accompHshed Equity 
lawyer when he came to the Bench, his practice in 
Virginia having been chiefly in Chancery, and he 
was thoroughly grounded in the Common Law ; but 
he had not been previously familiar with Commercial 
Law ; and he had had no experience at all, either in 
the superintendence or the practice of jury trials at 



12 

Nisi Prius, after that fasliion which prevails in Penn- 
sylvania, and in some of the Eastern and Northern 
States, as well as in England, where the Judge repeats 
and re^iews the evidence in his charge to the Jury, 
not unfrcqucntly shows them the leaning of his mind 
in regard to the facts, and directs them in matter of 
law. And, nevertheless, it was in these two depart- 
ments or provinces. Commercial Law and Nisi Prius 
practice and administration, particularly the latter, 
that he was eminent from the outset, and in a short 
time became, in my apprehension, as accomplished a 
Nisi Prius Judge as ever lived. I have never seen a 
Judge who in this speciality equalled him. I cannot 
imagine a better. Judging of Lord Mansfield's great 
powers at Nisi Prius, by the accounts which have 
been transmitted to us, I do not believe that even he 
sui-passed Judge Washington ; and I will refer to 
certain of Judge Washington's very striking quahties, 
which will enable others to comprehend the grounds 
of my opinion, if they do not fully show all the causes 
of his superiority. Be it observed, however, that 
Judge Washington never held a Court of Nisi Prius, 
properly speaking, as the constitution of his Court 
did not admit of it ; but held jury trials in bank, to 
outward appearance in the same manner as Courts of 
Nisi Prius are held in Pcnnsyh^ania. 

One fundamental faculty for a Nisi Prius Judge he 
possessed in absolute perfection — it was attention. 



13 

This great faculty, which by some Judges, and by some 
metaphysicians also, seems not to be reckoned in the 
category of faculties at all, is a turning difference or 
distinction between a good and a good-for-nothing 
Judge at Nisi Prius. A trial by jury is a battle. 
With the Judge, as well as with the Counsel, it is, for 
the most part, now or never. It is almost folly to be 
wise after the defeat, and it is therefore stultifying 
and criminal to be torpid or volatile during the com- 
bat : — as criminal in the Judge as in the Counsel ; for 
although the Judge is not to fight the battle, he is in 
a great degree to award the victory to the better 
cause, and even to assist it, when negligence or tor- 
por would put it in jeopardy. " Nee duhium est^'' says 
Quinctilian, ^^quin plurimum in hac parte valeat men- 
tis intentio, et velut acies luminum a p)^'ospectu rerum 
guas intuetur non aversa." The Judge should, there- 
fore, be wide awake by the spur of this intentio men- 
tis; for it is this power or faculty that incites the 
memory to watch and record the operations of the 
other faculties, while they are employed in perceiving, 
comprehending, and estimating the diversified facts 
and propositions, and combinations of both, that are 
presented in the course of a judicial trial; and which 
is especially indispensable in a trial by jury. 1 do 
not mean to define the power in the abstract, or to 
describe it at large ; but only to refer to it in relation 
to this one subject. For the most part, or with most 



14 

men, it is not possessed in much perfection, not being 
trained, as it might easily be, to a considerable degree 
of ^igor. It is often, consequently, a dozing or a fugi- 
tive faculty, and ready at all times either to fold its 
•v\-ings and fall asleep, or to lift them, and escape alto- 
gether to another region, unless the memoiT, imagi- 
nation, or judgment is so agreeably occupied and en- 
tertained, as to detain and keep it awake, after being 
awakened by it. It has a pretty good school in the 
profession and practice of the law ; but there are some 
dull scholars in this respect, not otherwise dull men, 
who go fi'om the Bar to the Bench * Its great school 
is in an intellectual science, pure metaphysics, by no 

* I have known one Judge, who was a Chief Justice also, of con- 
siderable acuteness, and of some name, who, on the Bench, did not 
possess the faculty in any appreciable degree. He made few or no 
notes of either evidence or arguments; and often, when thought to 
be employed in noting an argument, was scribbling caricature faces 
upon his paper. To so great an extent did this faculty fail him, 
that, on one occasion when he understood that I had advised the 
plaintiff's suit, but had not been retained to speak in it, and he was 
not satisfied with the argument of the Counsel at the Bar, he asked 
me, as amicus curice, to speak to the only point of law involved, 
which I immediately did, rather briefly. Three weeks afterwards I 
received a letter from him, informing me that my argument had sat- 
isfied the Court ; but that on sitting down to write the Court's opi- 
nion, he found that he could not recall it, and asking me to restate 
it to him, which I did. He adopted it, and gave credit for it in his 
printed opinion. Yet the same Judge at times delivered quite able 
opinions. 



15 

means the best of the sciences in all respects, but the 
best in this, where perceptions and thoughts, and a 
chain of thoughts — thoughts transitive and subtle — 
are to be caught and held by the memory as in a vice, 
while other faculties are employed in imagining, com- 
paring, reasoning, and deducing, some of their pro- 
ducts rejected, and some retained by the same grasp, 
until the thinker gets, or thinks he gets, the true 
bearing of all upon the proposition he wishes to solve. 
This is the true school, and is all carried on within the 
chambers of the mind, where there is no light unless 
attention kindles it, and no hold of anything unless 
attention stimulates the memory to grasp it. There 
is, in fine, no memory and no durable perception 
without it. But Judge Washington had no schooUng 
in this science. He was not a metaphysician, except 
so far as a thinking lawyer must be to some extent, 
whether he will or not ; and I do not recollect to have 
heard or read a word of metaphysics, or of any other 
intellectual science, except the mixed metaphysics of 
the law, that had come from his lips or his pen. 
Attention sprung from his head, frill gro^vn, at least as 
truly as Minerva from Jupiter's ; or he had trained it 
up from infancy in some way of his o^vn. He pos- 
sessed the power, as I have said before, in absolute 
perfection. I derive my knowledge of it fr'om more 
than twenty years' practice in his Court at its regular 
semi-annual sessions of two months each, and it con- 



16 

tinned to be to the last, as mnch a matter of surprise 
and admiration with me, as at the first. 

In addition to this, he had a great quickness and 
accuracy of apjjrehension. I have known a very emi- 
nent Judge, who could not take in the full meaning of 
a paper, while Counsel was reading it to him at the 
Bar, but must read it himself; and other Judges, 
who could not trust themselves to listen to a witness, 
taking a short note of what he said, but must make 
him repeat material parts, that he might write them 
down with some minuteness. Washington never in- 
terrogated a 'witness, nor asked Counsel to repeat 
what he had said, and but rarely called for documents 
after they had been read to him. He caught the im- 
portant parts in a moment, and made a reliable note 
of them, before the Counsel was ready to proceed ynth 
further testimony. 

He had a most ready command of iirecise and ex- 
ivessive language^ to narrate facts or to commimicate 
thoughts, and a power of logical arrangement in his 
statements and reasonings, which presented ever^'thing 
to the Jury in the very terms and order that were 
fittest, both for the Jury and for the Counsel, to ex- 
hibit the whole case. A Jury never came back to ask 
what he meant, and Counsel were never at a loss to 
state the very point of their objection to his opinion 
or charge, if they had any objection to make. 

He maintained, by his equanimity , a calm and 



17 

equable temper in all parts of the Court. If a spark 
flew out upon any occasion, it either went out of 
itself, at once, or it was extinguished by a look from, 
him — ^a look of half surprise, and. with a little more 
than usual dignity of air, as if he alone, and not the 
spark, was to be attended to. He never interrupted 
Counsel — he never expressly told them that they had 
labored a point sufficiently, or that he wished them to 
consider another matter more, or that they were wast- 
ing time. But when that happened, his eye would 
have an expression, and occasionally he would give a 
short lift of the head, which they who saw much of 
him understood perfectly, and which said as inuch of 
his thoughts of what was going on, as he inclined to 
say. Beside him there sat, during nearly all his life, 
a most pleasant District Judge, Richard Peters, many 
years his senior, a very good Admiralty Judge, but much 
disposed to leave the watch on deck in all weathers to 
his sleepless colleague, putting forth now and then for 
his refreshment some facetia or other — ^pun, quip, crank, 
or quiddit — for which he was very famous. Some 
Judges would have looked the graver for this, and 
some would have been decomposed by it ; but it was 
delightful to see, how a very slight ripple on the face 
of Washington, would show that the breeze had struck, 
and only just struck, and passed him, without affect- 
ing in the least the trim of his sails, or his course. 
From the beginning to the end of a trial, unless there 

3 



18 

was an appeal to him on a question of evidence or the 
like, he was perfectly silent, and constantly attentive, 
up to the very moment of delivering his charge to 
the Jury, and he was ready to do this at the next 
moment after the concluding Counsel sat down. 

Tliese are some of the faculties of Judge Washing- 
ton, which I hcul in mind when I referred to his 
extraordinary abilities as a Judge at Nisi Prius. I 
must not be understood to mean that there was a 
falling off, either of the faculties themselves, or in the 
manifestation of them, at the hearing of arguments 
upon mere questions of law : quite the reverse ; but 
the field for exhibiting them in perfection was the 
jury trial. 

And with this apparatus of powers or instruments, 
and a great fund of legal knowledge to work with, it 
cannot be very difficult for any one to see liim, as I 
now see him, beginning a jury trial, seated on that 
leathern cushion I have spoken of, with his box of 
ratlier Scotch snuff within his reach. It may be, if 
you please, a cause of great moment and expectation, 
of much complication in point of evidence, and of some 
difficulty and novelty in point of law ; witnesses to be 
examined viva voce at the Bar; depositions taken under 
connnission, and written contracts and correspondence, 
to be read ; perliaps orders in council, or French 
decrees, by wliich England and France so nuicli en- 
riched the Bar, and puzzled the Bench, and impover- 



19 

ished the Insurance Companies, in former days. It is 
all the same to him. There does he sit five hours, per- 
haps six, without once leaving that chair, or changing 
his position in it, or ever taking his eye — that bright, 
steady, single eye — from the Counsel, or the witness 
tliat is on the floor, except to make a short note of 
the argument or the evidence, or to take a pinch of 
half Scotch snuff. During all this time, and so from 
day to day, if the trial shall last a week or even longer, 
he will never interrupt the speaker, or the reader, or 
the witness ; nor disclose to the observer, by more or 
less attention, or in any other way, that the speaker 
is acceptable to him, or otherwise, or is speaking to a 
man who has an opinion or judgment of his own. He 
may smile at what Judge Peters whispers at his ear, 
and go on as before. He may lift his head half an inch 
at a spark, and lower it again. He may possibly put 
his right leg over his left, after his left knee has been 
uppermost for two hours. He will take short notes, 
and then look and listen to the last ; and, if need be, 
on the very clos^ of the last speech, he will place 
before the Jury, this complicated case of fact and law 
and contradictory evidence, parol and written, so 
clearly, in such lucid order of parts, and with such 
masterly instructions, adverting to all that Counsel had 
urged, and which any one would think it material to 
notice, that it will have almost the air of inspiration. 
I have seen the same thing done many, many times ; 



20 

and never heard a suggestion from anybody, that he 
was either too concise, or too full, or in the least de- 
gree deficient or partial. His arrangement of the evi- 
dence in his charge, and of the reciprocal bearing of 
the parts, was, of itself, an argument for the side he 
favored, and he would sometimes manifest his leaning 
rather more clearly, by his emphasis on certain parts ; 
but he never expressed a direct opinion upon the evi- 
dence, to rule, still less to oveiTule, the fair judgment 
of the Jury upon the whole evidence. Upon the law 
he was expUcit, distinct, and precise; and if there 
was nothing but law in the case, he would hold the 
Jury inexorably to that, until the opinion, if neces- 
sary, should be reviewed, on a motion for new trial. 

If he was ever disposed to practise a little art upon 
the Bench, Avhich did sometimes happen when the 
Court was hearing law arguments, though I never 
saw it when a Jury was before him, it was the giving 
his complete attention, and with some more show of 
deference than was usual in him — for, in general, he 
had little of that — to an unsound argument, that was 
pressed upon him with confidence and positiveness, 
perhaps the more from his seeming to receive it 
kindly ; and then, especially if it came from Counsel 
who ought to have kno^vn better, he would, as a 
huntsman serves a hound who opens vociferously upon 
a wrong scent, take the offender by the neck, give 
him half a dozen sliai-p lashes, and leave him to re- 



21 

cover himself at his leisure. This, it is true, was 
rarely done, and never, unless the punishment was 
due, and never, also, but in such a manner as to be 
without personal offensiveness — the argument, and 
not the speaker, being treated as the delinquent. He 
could be very sarcastic and severe, but this was far 
from his general bearing. It required but an example 
or two, as may be supposed, to make all the Bar very 
careful of what they said to him, and much more 
attentive to their argument than to his manner of 
receiving it. 

I have said that he was inexorable in holding the 
Jury to his opinion in point of law, when there were 
no disputed facts in the cause. I recollect one memo- 
rable instance of it. An action of ejectment was 
tried before him, in which the question was, whether a 
devise carried an estate tail with a remainder in fee, or 
an estate in fee simple vnth an executory devise in fee. 
The evidence was altogether confined to the will, the 
pedigree of parties, one or two mesne conveyances, 
and the defendant's possession, no part of which was 
disputed, nor admitted of dispute. The cause was, for 
certain reasons, argued at length in the presence of the 
Jury ; and at the close, Washington declared explicitly 
and pointedly, that his opinion was with the plaintiff, 
and charged the Jury that their verdict should be for 
the plaintiff. The Jury went out, and staid out till 
the next morning, and then returned with a verdict for 



22 

the defendant. Tlie same had happened once or 
twice in the Supreme Court of the State, upon the 
same title, in consequence of what was said to l)e the 
hardship upon the party in possession, Wliile the 
Jury were leadng the Box to separate, I moved the 
Court for a rule to sheio cause why a new trial should 
not be granted. Washington : " Let the verdict be 
set aside. Where a case contains no matter of con- 
troversy but what is matter of law, I do not .ac- 
knowledge that the Jury have any discretion but to 
find a verdict in conformity to the charge of the Court 
upon the law." He said, in rather a lower tone, that 
he would do so a hundred times running in the same 
kind of case; and for this he was pretty roundly 
censured in a newspaper. When the paragraph was 
sho^^'n to him, he said, and with an expletive that he 
never used in later days, " I would set it aside a thou- 
sand times." 

While his powers were in their vigor, every cause 
that could be earned into his Coiui;, was, without fail, 
earned there, if the Counsel had confidence in his 
cause, such was the satisfaction of the Bar and people 
with his administration of the law, and with the 
Juries of that Court under his supervision ; and, al- 
though some of his decisions were reversed upon 
appeal or ^vrit of eiTor, yet the great body of them 
was acquiesced in ; and it shoidd be remembered, that 
reversal, especially by a divided Court, is not an in- 



23 

fallible proof of error, except for the disposal of the 
very cause. " Sed vicia Catoni^'* I know to have been 
true of himself in regard to some reversals, and of the 
Bar in regard to several. For more than twenty-five 
years the Circuit Court was a model for judicial ad- 
ministration. There was rule for all that was done, 
and for all that was not done. Causes were tried or 
postponed according to the rules of practice ; and the 
consequence was, that Counsel were always ready for 
trial, or ready with a legal reason to the contrary. 
Judge Washington during this period would have 
looked as with both his eyes, if postponement or de- 
lay had been asked upon the ground that a colleague 
was engaged in another Court. And yet no one 
suffered by the system. The machine was closely 
geared, but it worked with great truth, and with the 
least wear and tear to itself and to the suitors. 

In the latter part of this period, in civil causes, he 
became very observant of the then regular hour of ad- 
journment, three o'clock. As the clock struck ten, he 
was always found in his saddle, ready to begin the day's 
work ; and this practice was never changed. Latterly, 
as the clock struck three, he would immediately order 
an adjournment of the Court, and r se from his chair. 
On one occasion I was in the middle of a sentence, 
when the hammer of the State-House clock fell, and he 

said, with a smile, half rising from his chair, " Mr. , 

I will hear the rest of that sentence to-morrow morn- 



24 

ing." I aftel•^^^ards joined him, and walked homeward 
witli him a few squares, when he gave me the ex- 
planation of his abruptness. "The sound of that 
clock," he said, " is as distinctly heard by Mi*s. AVash- 
ington at our lodgings, as it is heard by us in the 
court-room ; and if 1 am not in her parlor within five 
minutes afterwards, she imagines that some evil has 
happened to me, and her nei*ves are disordered for 
the rest of the day. Their condition is at all times 
bad, but then it becomes much worse. In general, I 
give the whole of the evening to reading aloud to 
her such books as will amuse and interest her, until 
drowsiness comes on. I look at neither book nor 
paper in the cause imtil the n( xt morning, and then, 
by early hours, I endeavor to redeem the time." 
After this, the like occurrence happened more than 
once, when a look and a slight inclination of the head, 
were all that preceded the order to " adjourn the 
Court." We all came to understand it. The pre- 
caution in regard to Mrs. Washington was, I have no 
doubt, necessaiy. They were ^vithout childi-en, and 
she uniformly attended him upon his Circuit. When 
his death occurred, in Philadelphia, it broke her 
down ; and, though she attempted to get home, when 
his remains were attended to Mount Vcnion, she died 
upon the road. 

With the exception of the session in which he died, 
there was but one instance in his judicial Hfe in which 



25 

he failed to attend the Circuit Court, and to continue 
to preside in it until his calendar was disposed of. 

General Washington devised Mount Vernon, and a 
large part of that estate, to Bushrod Washington in fee 
simple, after a life estate to Mrs. Washington in all his 
real and personal property, which included his slaves. 
To the slaves, he gave their freedom after Mrs. Wash- 
ington's death, this postponement of emancipation 
being ordered in consequence of their intermarriage 
with the dower slaves of Mrs. Washington's first mar- 
riage, who were not at his disposal. The provisions 
of General Washington's will were very benevolent in 
regard to these slaves ; but there was no provision 
in it for their removal in a body to a free State, 
and on the contrary, there was a provision that none 
of them should be sold or transported out of the State 
of Virginia. His will and death preceded by several 
years the practice, or the suggestion, of colonization 
in Africa. 

A veiy few years after General Washington's death. 
Judge Washington came into Court in the morning, 
and informed Judge Peters and the Bar, that he was 
compelled by pressing circumstances to leave the 
Court, and to proceed to Mount Vernon. It was 
understood that Chief Justice Marshall and Judge 
Washington had been urgently called to Mrs. Wash- 
ington, in consequence of an attempt to set fire to 
Mount Vernon House, in which some of the slaves 

4 



26 

were thought to be implicated ; and it was afterwards 
said, that Marshall and Washington advised the im- 
mediate emancipation of the slaves, as a bar to similar 
and worse attempts. At a time when there was little 
or no experience in the world of the effects of an un- 
prepared emancipation of a considerable body of slaves 
within a community having large numbers of them, 
General Washington, from his predominant preference 
of free institiitions and labor, had made this testa- 
mentary provision without duly estimating, it seems, 
the dangers to the intermediate Hfe, or to the slaves 
themselves. I understood years afterwards in the 
neighborhood, that no good had come from it to the 
slaves, and that the State of Virginia was compelled to 
place restraints upon emancipation within her limits, 
for the general good of all. 

This was the only interruption that occurs to me, of 
Judge Washington's long and faithful service in the 
Pennsylvania Circuit. The whole event just noticed 
had an unfavorable effect on his wife's nerves; but 
his own equal and rather cheerful temper continued 
to the last, though the energy with which he used to 
despatch business, or, to speak more accurately, the 
working of the fine judicial machine, of which he 
was the motive power, became less regular in a few 
of his latest years, wliether because his own force was 
impaired, or because resisting forces, which have since 
done some miscliief to our Courts, had increased, 



27 



it was not easy to ascertain. He was always con- 
scientious, wakeful, and true ; and for a large portion 
of the last half of his life, he was sustained and ele- 
vated in the performance of all . his duties, by a reli- 
gious profession, openly made in the Protestant Epis- 
copal Church, and by him constantly observed. 

I have never thought that his Reports of his own 
decisions, did him entire justice, while they, in no 
adequate manner at all, fully represent his judicial 
powers, or the ready command he held of his learning 
in the law. They were for the most part written out 
in his note-books, calamo currenie, as they are now 
printed ; and besides being the fruit of less labor than 
they deserved, he was by no means as good a writer 
as he was an extempore speaker in the law. His pen 
was never so expressive and pointed as his tongue. 
But they nevertheless showed very considerable learn- 
ing, perfect loyalty to the law, and are perhaps of as 
much authority as the decisions of any court, not of 
final jurisdiction, can pretend to. They are, I believe, 
the imprint of the first and only draught that he made 
of them. His practice, after he had excogitated the 
matter to a conclusion by such reasoning as satisfied 
him, was to put his reasons into words upon his little 
blank-book, with more attention to the reasons than 
to the words, and they were then at the service gene- 
rally of those who wished to copy them. And I re- 
collect one instance in which the conscientiousness of 



28 

his reasoning was exemplified by a rcniarlc in tlie 
course of his page, pretty i>iiich to this effect : " But 
tliis reasoning will carry me to a conclusion directly 
opposite to that whicJi my mind had before arrived at; 
nevertheless I shall follow it." And he did follow it, 
and did come and adhere to that opposite conclusion. 
Such also was his course in the open court. If he had 
expressed to the Jury a clear and unqualified opinion 
upon the law — and his opinions, so expressed, were 
generally unqualified — this in no degree prejudiced 
his attention to a subsequent argument, nor, if that 
argument changed his opinion, prevented his declaring 
it frankly, and with apparent satisfaction. How rare 
is this quality among Judges in general, and how irre- 
fragable a proof it is, both of a strong mind, and of a 
most honest one ! 

I may, I hope, be permitted to say, that to the judi- 
cial accompHshments of learning, attention, prompt- 
ness, steadiness, courage, and incorruptible faith, he 
acquired a characteristic in his long service in Phila- 
delphia, which, if more hmited in its demonstrations 
and range, was at least as attractive as any that he 
showed, to those "who were his subministers in the 
service, — a warm aftection for the Bar of Philadelphia. 
He manifested this especially at the Bar of the Supreme 
Court of the United States, where it was certainly no 
disadvantage to Counsel in his time that they were of 
the Philadelphia Bar. Of the younger members of 



29 

the Bar he used to speak as " his children ;" some- 
times he called them " his boys;" and he used to make 
his boast of them, much more than any of them would 
do for themselves. He referred to them as men who 
to the usual intellectual qualifications for the Bar, 
added the higher qualification of integrity, profes- 
sional and personal. And the praise from him was 
as high as possible, for he was not given to demon- 
strations of this sort, and he was as true, honorable, 
and conscientious, as the great Washington himself. 



W 84 



.- 'V *: 



.;%/ 



V.^' 

.'f'-^^. 






. - • * "^b ' 







»( 



b^'. 









-^^ 










^o 



" • • 












'^^ 



y c ' • • • 



'^_ 




v-iV- .!< 




.^^^ »%..„ 



"°o 







^oV" 



-0' 







f « ^' ' . NJ ' 
















^oV" 











^•/ \^^^\/ %^^-/ X/W^\/ % 
/ :M£^ ^-^...^^ /Jiife\ \..^^ :'M£^ %,^^ 




v-^^ 



«^«b' 




\ .oA-^^-^o, /.i^:'^-^ ^o^^•;;;^^v ,V 






^^0^ 




'bV" 






^^•n^. 





.Ho^ 




V* ♦ 



^. 
















.-i*^^ 







..v*^ <^ . . . . 











k'. \^ J<WQ?TB06KB§iblNG 






